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Date: February 8, 2021
Posted by: CPDMA Team

Creditor's rights: contractual termination and suspension in the pandemic scenario

The pandemic scenario that devastated the end of 2019, the year 2020 and that still persists in 2021 brings numerous doubts because, in the face of events, several hirings were shaken, the default grew and the lack of clarity in the rules and jurisprudence established insecurity in relationships. Therefore, it is necessary for the creditor to be aware of his rights to prevent damages and abuses.

Among the legal provisions that involve the subject, article 393 of the Civil Code (1) which deals with acts of God and force majeure, as well as article 478 of the same code (2), for example, are being commonly used by debtors as argument to justify the termination of contracts. 

Following is an excerpt from art. 478, CC:

“Art. 478. In contracts of continued or deferred performance, if the performance of one of the parties becomes excessively onerous, with extreme advantage for the other, due to extraordinary and unforeseeable events, the debtor may request the termination of the contract [...] ”

Therefore, from reading the legal diploma above, it is prematurely understood that the request for termination due to the emergence of COVID-19 is enough for the relationship to be extinguished. Still, there is, in fact, jurisprudence eliminating the contractual fine and other charges, but the particularities of each case must be observed.

From this perspective, in the face of a request for termination or suspension of the contract, the creditor must know some of its main legal guarantees: 3). The contract cannot remain too onerous or generate extreme advantage for any of the parties, including the creditor himself.

The duty to renegotiate contracts is part of the general clause of objective good faith, but it is not an obligation to accept the proposal of the opposing party (4). The principle of Pacta Sunt Servanda (the pacts must be fulfilled) must be observed (5).

The courts have come to understand that the requirements of the contract must be observed, with termination and judicial review being extraordinary measures, and there must be regular adversarial proceedings and ample defense, including the payment of a bond (6).  

Therefore, aware of its rights, the creditor can protect itself and avoid unmotivated default, in order to guarantee the receipt of its credit or to see the agreed consideration satisfied. Furthermore, nothing prevents the contracts from being renegotiated or readjusted so that the relationship is not lost through the financial aggravation of the counterparty.

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(1) Art. 393. The debtor is not liable for damages resulting from a fortuitous event or force majeure, if he is not expressly responsible for them. Single paragraph. The fortuitous event or force majeure is verified in the necessary fact, whose effects it was not possible to avoid or prevent.

(2) Art. 478. In contracts of continued or deferred performance, if the performance of one of the parties becomes excessively onerous, with extreme advantage for the other, due to extraordinary and unforeseeable events, the debtor may request the termination of the contract. The effects of the sentence that enacts it will retroact to the date of service.

(3) (TJ-DF 07112805420208070001 DF 0711280-54.2020.8.07.0001, Rapporteur: ANGELO PASSARELI, Judgment Date: 12/09/2020, 5th Civil Panel, Publication Date: Published in PJe: 01/11/2021. Page: No Page Registered).

(4) SCHEIBER, Anderson. Duty to renegotiate. Published January 16, 2018. Available at: http://genjuridico.com.br/2018/01/16/dever-de-renegociar/ Accessed January 25, 2021.

(5) (TJ-SP - AC: 10110275620208260003 SP 1011027-56.2020.8.26.0003, Rapporteur: Carlos Dias Motta, Judgment Date: 01/13/2021, 26th Private Law Chamber, Publication Date: 01/13/ 2021).

(6) (TJ-PR - AI: 00399941920208160000 PR 0039994-19.2020.8.16.0000 (Judgment), Rapporteur: Judge Marcelo Gobbo Dalla Dea, Judgment Date: 10/13/2020, 18th Civil Chamber, Publication Date: 13 /10/2020).

Source: Shaiene dos Santos Trindade da Costa, attorney at Cesar Peres Dulac Müller.

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